17-2198-cv Liu v. Ryan

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of June, two thousand eighteen.

PRESENT: ROBERT D. SACK, REENA RAGGI, Circuit Judges, PAUL G. GARDEPHE, District Judge.* ____________________________________________

LEWIS Y. LIU,

Plaintiff-Appellant,

v. No. 17-2198-cv

PAUL RYAN, NANCY PELOSI, MITCH MCCONNELL, CHARLES E. SCHUMER,

Defendants-Appellees. ____________________________________________

APPEARING FOR APPELLANT: LEWIS Y. LIU, pro se, New York, New York.

* Judge Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation. APPEARING FOR APPELLEES: STEPHEN CHA-KIM, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

Appeal from a judgment of the United States District Court for the Southern District

of New York (William H. Pauley, III, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff Lewis Y. Liu, proceeding pro se, appeals from the dismissal of his

complaint against defendants Paul Ryan, Nancy Pelosi, Mitch McConnell, and Charles E.

Schumer, which claims that the Electoral College violates the Fourteenth Amendment right

to equal protection by giving disproportionate weight to votes cast in presidential elections

depending on the population of the states where the votes are cast.1 Specifically, Liu

alleges that his vote, cast in New York during the 2016 presidential election, received less

weight than votes cast in less populous states. He, therefore, seeks a judgment declaring

the Electoral College unconstitutional and an order compelling Congress to take legislative

action to dismantle it. Insofar as the district court dismissed Liu’s claim for lack of

standing, we review that dismissal de novo. See Rajamin v. Deutsche Bank Nat’l Tr.

Co.,

, 84–85 (2d Cir. 2014). In doing so, we assume the parties’ familiarity

1 Liu also argues that the Electoral College violates the Constitution’s Article IV and its First and Fifth Amendments, as well as the Voting Rights Act of 1965. Because Liu raises these arguments for the first time on appeal, we do not consider them. See Harrison v. Republic of Sudan,

(2d Cir. 2016).

2 with the facts and procedural history of this case, which we reference only as necessary to

explain our decision to affirm.

To establish constitutional standing, a plaintiff must show (1) that he suffered an

injury in fact, (2) that is causally connected to the challenged conduct, and (3) that is likely

to be redressed by a favorable decision. See Spokeo, Inc. v. Robins,

(2016); Lujan v. Defs. of Wildlife,

, 560–61 (1992). An injury in fact must

be “concrete and particularized,” meaning that it affects the plaintiff in a personal and

individual way and is “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc.

v. Robins,

(internal quotation marks omitted). A voter “fails to present

an injury in fact when the alleged harm is abstract and widely shared or is only derivative

of a harm experienced by a candidate” or other actor. Crist v. Comm’n on Presidential

Debates,

(2d Cir. 2001). Here, Liu admits that his alleged injury is

widely shared by the vast majority of Americans, and that injury is derivative because the

Constitution grants states, not individuals, the right to select presidential electors, such that

any harm arising from the disproportionality of the Electoral College belongs, in the first

instance, to the states. See U.S. Const. art. II, § 1; id. amend. XII; see also Bush v. Gore,

(2000).

Liu also has failed to demonstrate that it is “likely, as opposed to merely

speculative,” that the alleged injury will be redressed by a favorable judicial decision.

Carter v. HealthPort Techs., LLC,

(2d Cir. 2016) (quoting Lujan,

); see E.M. v. N.Y.C. Dep’t of Educ.,

(2d Cir. 2014) (requiring

3 “substantial likelihood” of redressability (internal quotation marks omitted)); Faber v.

Metro. Life Ins. Co.,

(2d Cir. 2011) (observing that test is whether judicial

intervention is likely to rectify injury, not whether plaintiff has other, non-legal remedies

at his disposal). That is because constitutional provisions create the Electoral College, see

U.S. Const. art. II, § 1; id. amend. XII, and the power to repeal or amend constitutional

provisions has been delegated to Congress and the states, not the courts, see id. art. V.

Even if a court could order defendants, the leaders of Congress, to propose a constitutional

amendment—which we very much doubt, see id. art. I, § 1 (vesting “[a]ll legislative

Powers” in Congress); id. art. V (setting forth procedures for Congress and states to amend

Constitution); see also 1 Annals of Cong. 604 (1789) (reporting Madison’s statement in

first Congress that “if there is a principle in our constitution, indeed in any free constitution,

more sacred than another, it is that which separates the legislative, executive, and judicial

powers”)—the likely outcome of a vote on such a proposal is entirely speculative, see U.S.

Const. art. V (requiring assent of two-thirds of members of each House).

For much the same reason that Liu cannot satisfy the redressability requirement of

standing, he fails in any event to state a claim for which relief can be granted. See Fed. R.

Civ. P. 12(b)(6); see also Bruh v. Bessemer Venture Partners III L.P.,

(2d Cir. 2006) (explaining appellate court may affirm district court on any basis for which

there is sufficient support in record). The Electoral College generally, and its population-

proportionate representation in particular, are mandated by the Constitution itself. See

U.S. Const. art. II, § 1, cl. 2 (setting number of each state’s presidential electors as equal

4 to number of Senators and Representatives to which it is entitled in Congress); Gray v.

Sanders,

(1963) (explaining that “specific historical concerns” validated

inclusion of Electoral College in Constitution “despite its inherent numerical inequality”).

Accordingly, these constitutional requirements cannot be declared unconstitutional by this

court.

We have considered Liu’s remaining arguments and conclude that they are without

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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